United States: A One-Two-Three Inning

Last Updated: June 6 2017
Article by James Beck

With the Phillies stinking the joint out – off to their worst start since World War II – and both of Boranian's local teams in last place, too (not as deeply buried as the Phillies), use of baseball imagery might seem a bit painful right now. Only our DC-based blogger has had anything worth cheering about lately, and with what's going on there recently.... Baseball must be a welcome distraction.

But a one-two-three inning was what came to mind in looking at the new decisions that turned up last week. We were struck by three relatively easy wins for defendants. Individually, they would not warrant separate post, but under a "totality of the evidence" standard, when added together, we found them worth discussing

The first is N.K. v. Abbott Laboratories, 2017 WL 2241507 (E.D.N.Y. May 22, 2017), a Depakote/birth defects case. There are a number of these cases around, and we have already commented on several. But we have to say, if the other side's experts are as poor as they were in N.K, this litigation deservedly isn't going anywhere. N.K. went away on summary judgment after all of the plaintiff's "experts" – and the term deserves to be in quotes – were excluded from testifying. The first purported expert was the minor-plaintiff's treating pediatrician, who was totally out of her depth:

[The witness] has never conducted research on Depakote or valproic acid. Nor has she researched the effects of in utero exposure to valproic acid ("valproate exposure"). Prior to [minor plaintiff's] first visit, her knowledge of Depakote was limited to refilling prescriptions for epileptic patients. Since that initial visit, she has conducted little to no additional research on Depakote, valproic acid, or valproate exposure.

2017 WL 2241507, at *2 (record citations omitted). Unsurprisingly, the court found this witness "not qualified to testify that Depakote caused [minor-plaintiff's] injuries." Id. at *3. She possessed no applicable medical experience nor had she bothered even to review the relevant literature. Id. (she "did not perform any research or make any additional investigation that might qualify her as an expert on valproate exposure"). Instead, "[h]er attempts to understand the cause of [minor-plaintiff's] injuries were limited to a single review of a single medical book, the day of his first visit." Id. This is hardly the kind of expert we would expect to see in litigation where a strong causation case is present.

The second expert in N.K. "ha[d] a more substantial background" – it could hardly have been less – but was not even a medical doctor. Id. at *4. Again, we would not expect to see this kind of "expert" in a strong case. Lack of a medical degree is a problem. "[C]ourts have consistently drawn a distinction between the qualifications of medical and non-medical doctors, noting that non-medical doctors who are qualified to diagnose a medical condition may be unable to reliably determine its cause." Id. This witness was a "teratologist and toxicologist," but had no relevant diagnostic expertise. "[B]y his own testimony he has never evaluated children, has never been called upon to diagnose dysmorphic features or autism in a child, and is not a clinician." Id.

Nor did these unqualified "experts" use proper methodology. They both purported to engage in the last refuge of a Daubert scoundrel – differential diagnosis. The pediatrician "viewed [minor plaintiff's] condition as either genetic or the result of prenatal valproate exposure." Id. at *5. Which one didn't she investigate?

She reached this conclusion before eliminating any genetic causes. . . . Not only did [she] fail to eliminate alternative causes before reaching her initial conclusion, she lacked the knowledge to independently rule out genetic causes.

Id. Genetics were a serious alternative "[A]t least four other treating physicians have recommended further genetic testing to determine the cause of [minor plaintiff's] injuries." Id. The court could hardly be faulted for wondering what these plaintiffs were hiding in not having this testing done.

The other expert – the one that wasn't even a doctor – was, if anything worse. He "did not conduct his own independent investigation," rather "[h]is opinion is based entirely on reviewing existing reports provided to him by Plaintiffs." Id. at *7. Having to spoon-feed an expert is another indicator of a weak case. Beyond that, his "attempt to rule out potential alternative causes of [minor plaintiff's] condition is plagued by the same problems as" the pediatrician's. Indeed, "[h]e relied on [her] flawed report in ruling out genetic causes." Id.

Finally, plaintiffs failed to slip the pediatrician's opinions in the back door, as "factual" testimony by a treater. A treater's testimony was equally subject to Daubert:

Even if such an opinion could be read into her records, classifying [her] as a fact expert does not relieve this Court of its duty to ensure she utilized reliable methods in reaching her opinion. Courts in this district have found that when a treating physician seeks to render an opinion on causation, that opinion is subject to the same standards of scientific reliability that govern the expert opinions of physicians hired solely for the purposes of litigation.

Id. at *8 (citations and quotation marks omitted). To us, this is the most significant legal ruling in N.K.

Summary judgment granted. One away on a dribbler to the mound.

Next up, Rincon v. Covidien, 2017 WL 2242969 (S.D.N.Y. May 22, 2017). Rincon failed on a motion to dismiss, because of TwIqbal. Rincon involved hernia mesh, and an alleged injury suffered more than six years after implantation. Id. at *1. Plaintiff's complaint had a rather fundamental – and fatal – flaw. It failed to allege that a defect caused the alleged injuries:

[Plaintiff] fails to allege any facts that plausibly establish such causation. . . . Taken together, these facts − even liberally construed (not that there is a basis for liberal construction here) − fall far short of demonstrating that [defendant's] mesh was a "but for" cause of [her] later injuries. . . . Nothing in the Amended Complaint even endeavors to explain why the mesh is a more likely, let alone proximate, cause of [plaintiff's] alleged harms.

Id. One would have thought that, with an obvious serious timing issue, the plaintiff would have tried harder in Rincon to allege the sort of critical facts supportive of causation. The absence of these facts is another marker of a weak case.

But not only did the plaintiff in Rincon fail to allege causation; she also failed to allege defect:

Under New York law, Rincon must prove the existence of a defect. . . . But [plaintiff] fails to allege a defect except in the most conclusory terms: that [defendant] manufactured the PCO mesh, that the mesh was used during her hernia surgery in 2006, that she needed subsequent medical procedures in 2012 and 2013, and thus [defendant] must not have "properly manufactured, tested, inspected, packaged, labeled, distributed, marketed, examined, sold, supplied, prepared and/or provided [ ] the proper warnings" regarding the mesh.

Id. at *2. To make matters worse, plaintiff tried to make up her pleading defects in her brief opposing dismissal. The court was not impressed. Those assertions "serve only to illustrate the deficiencies in her Amended Complaint − namely, that it does not identify any actual defect in the coating and says nothing about how the coating, even if defective, caused [her] specific injuries." Id.

On top of that, plaintiff only "suggest[ed]," but did not actually seek, leave to amend. Id. Plaintiff's notably poor pleading resulted in dismissal with prejudice. "[E]ven if [she] were to add her new 'facts' . . ., her claims would all still fail for the reasons discussed above."

Called third strike. Two down, and add one to our TwIqbal cheat sheet.

The final out was made by Merancio v. Smith & Nephew, Inc., 2017 WL 2257124 (E.D. Cal. May 23, 2017), where summary judgment was granted after the plaintiffs failed to retain the allegedly defective implant. The complaint itself was a mess, which certainly did plaintiffs no favors. "[N]either factual details concerning plaintiffs' claimed injuries nor specific legal theories of liability have been alleged in any detail." Id. at *1. Having lost the device that supposedly failed plaintiffs "presented no substantive evidence concerning the merits of their claims." Id. Instead, they pursued another all too common "last refuge of a scoundrel" tactics – attempting to litigate the defendant's supposed discovery lapses.

That didn't work this time. Whatever deficiencies (if any at all) in the defendant's initial disclosures were irrelevant by the time summary judgment rolled around. Even if the identity of the affiant who supported the summary judgment motion was disclosed too late, it was disclosed "well prior to the close of discovery," and the witness "was ultimately deposed by plaintiffs." Id. at *4. Like too much pine tar on a bat, the violation, if it existed at all, was harmless. Or, to mix sports metaphors, "no harm, no foul." "Plaintiffs have made no showing that they were prejudiced by the timing of defendant's disclosures. Indeed, plaintiffs have made no allegations of any harm − not even general, vague, and conclusory ones − flowing from defendant's allegedly belated disclosures." Id.

So plaintiffs tried again, arguing that the court should ignore the defendant's affidavit, which was factually undisputed, because the affiant "failed to include a list of cases in which he has appeared as an expert." Id. at *5. The court was having none of plaintiffs' trivial pursuit. If plaintiffs thought this deficiency was so important, they should have done something about it earlier, rather than pursue a nitpicking litigation strategy:

[P]laintiffs' counsel never asked defense counsel or the expert for this list and never filed a motion to compel with the court seeking the information or the imposition of sanctions. . . . Again, plaintiffs do not even generally suggest how they have been harmed as a result of these minor deficiencies in [defendant's] expert report. Indeed, when asked at the hearing on the pending motion, plaintiffs' counsel suggested he purposefully did not pursue any further efforts to obtain the list of cases in which [the affiant] had appeared as an expert because, in counsel's view, it made defendant's expert "attackable."

Id. (emphasis added).

With plaintiffs' discovery smokescreen blown away, summary judgment was inevitable. "It [was] undisputed on summary judgment that, at the time the parts used in [plaintiff's] knee replacement left the control of defendant, they had been inspected, passed quality control inspections, and were in compliance with all applicable FDA regulations." Id. at *7. Defect at sale is a "necessary element" of strict liability. Id. Further, California simply does not recognize strict liability design defect claims involving prescription medical products. Id. Negligence failed because of a "complete failure of proof" that the device failed when it shouldn't have. Id. at *8. Finally, plaintiffs' warranty claim was dismissed (in addition to the above grounds) on an interesting legal ruling − that the personal injury damages were not available for alleged breach of contract:

Here, plaintiff seeks general damages for pain, suffering, and inconvenience, and special damages for medical expenses, future medical expenses, loss of earnings, [plaintiff] seeks here are generally not cognizable in claims sounding in contract in California.

Id. (citations omitted). Finally, with no evidence "that the defendant negligently injured" her spouse, that wife-plaintiff's consortium claim bit the dust. Id. at *9.

Side retired on a (very) foul popup.

Weak claims all in N.K., Rincon, and Merancio. Daubert, TwIqbal, and simple failure to prove the claim defeated these actions, and did so fairly expeditiously. Which is as it should be. Weak claims have no business being brought, and where plaintiffs are unable to hide weak claims in MDLs, these cases demonstrate that (at least in the federal courts), the civil justice system still works.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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